Re: Control of Firearms, Guns, Ammunition and Related Articles the President Determines No Longer Warrant Control Under the United States Munitions List (USML), RIN 0694–AF47

Dear Mr. Clagett,

We are writing to express our concerns about the U.S. Department of Commerce’s proposed rule, published in the Federal Register on May 24, 2018, to transfer certain firearms, guns, ammunition, and related parts from the U.S. Department of State’s U.S. Munitions List (USML) to the U.S. Department of Commerce’s Commerce Control List (CCL) under a new 500 series designation. While we were pleased to see that the proposed rule maintained some important controls connected with the USML for the firearms moving to the CCL, we believe the proposed rule will mean more U.S. firearms will be exported with less transparency, fewer oversight mechanisms, and a weaker ability for the U.S. government to prosecute violations.

First, the transfer of certain firearms, guns, and ammunition from USML to the CCL appears to be fundamentally inconsistent with the scope of statutory authority outlined in the Arms Export Control Act (AECA). For more than three decades, the U.S. government has designated many types of firearms and guns that are proposed to move to the CCL as “Significant Military Equipment” (SME) because of their “substantial military utility or capability.” According to the AECA, all defense articles designated as SME must be on the USML. While there may be more civilians using these types of weapons now than in the 1970s, most foreign militaries continue to use these types of firearms as standard issue and they continue to have substantial military utility. Moreover, the proposed rule’s assertion that the firearms moving over to the CCL, including “Combat Shotguns” and .50 sniper rifles, has “for the most part,” “civil, recreational, law enforcement, or other non-military applications” and thus deserve limited controls is highly questionable.

Second, because the term “defense article” is linked to several statutes with national security import, the removal of firearms, guns, ammunition, and certain parts from the USML means there would be many rippling implications of the transfer of items from the USML to the CCL under the AECA and the Foreign Assistance Act (FAA). The AECA is a sophisticated statutory framework that enables the United States to more effectively monitor a large volume of arms exports. The proposed transfer impacts various statutes linked to the AECA more broadly and creates ambiguity with the ability of Congress to monitor U.S. assistance to foreign countries through various notification and reporting requirements found in the AECA and the FAA. The transfer of arms to the CCL would undermine that framework.

As outlined in more detail in the below analysis, the U.S. government or the U.S. policy community would lose many key oversight tools and abilities to help prevent irresponsible or illegal firearms trafficking around the world as a result of these proposed changes. In particular, the U.S. government or U.S. policy community (Congress and the public) would have a limited ability to do the following:

Halt or modify risky proposed firearms sales valued at $1 million or more to countries such as to Honduras, Turkey, or the Philippines;

Curb risky exports of pistol grips and magazine clips valued at $500 or less to over 100 countries, including Mexico and Guatemala;

Review proposed training on how to aim and fire a gun and other types of foreign police training to countries such as Libya or China;

Better understand U.S. firearms manufacturing and ownership to identify risks within the U.S. firearms industry; and,

Investigate and prosecute companies for failing to properly provide political contributions and marketing fees aimed at curbing corruption.

Additionally, the AECA only permits the sales of defense articles and services for specific reasons, including primarily for legitimate defense purposes.[1] Section 3 of the AECA requires the State Department to notify Congress when there is credible information that such articles or services were misused.[2] However, there is not a similar requirement connected with the Export Administration Regulations (EAR). The AECA also requires the State Department to publicly report on all authorized and delivered arms exports annually, which has provided Congress and the public with an essential tool to identify potentially illegal trafficking patterns and sales that are inconsistent with U.S. policy. However, the Commerce Department does not have this same requirement nor does it regularly provide the same level of transparency as the State Department.

We are pleased to see that the proposed rule attempts to maintain effective oversight of arms brokers by ensuring that brokers must register and seek a license. These provisions are critical in helping mitigate illegal arms trafficking to major conflict zones and transnational criminal organizations. However, we are concerned that the basis for the State Department’s rules is subject to legal challenge because it is not clear that the State Department has the statutory authority to maintain brokering controls if firearms are transferred from the USML. Similarly, we are concerned about the U.S. government’s statutory basis to halt arms transfers based on human rights concerns. In 2014, Congress amended the FAA to prohibit the export of Series 600 items to countries “the governments of which engage in a consistent pattern of gross violations of internationally recognized human rights.”[3] If the proposed rule moved forward as is, the State Department would no longer have a statutory basis for vetoing a proposed sale on human rights grounds for firearms, guns, ammunition, and related parts that move to the CCL.

Given the potential loss of so many U.S. arms export controls and likely negative impact on curbing irresponsible and illegal arms transfers, we encourage you to wait until the Government Accountability Office finishes its analysis of the risks of moving firearms from the USML to the CCL until you move forward on this proposal. If you have decided you want to move forward with moving some firearms, guns, and related parts over to the CCL, we recommend making the below changes to the proposed rule:

Recognize that semi-automatic firearms are still a weapon of choice for foreign militaries and of significant military value and place firearms under the 600 Series list on the CCL;

Maintain the requirement to notify Congress and the public of any proposed firearms sales that reach $1 million or more;

Limit companies use of the Limited Value Shipments (LVS) license exception to $100 or severally limit the types of parts and components that are available for the $500 threshold value;

Expand the definition of “technology” to capture defense-service type activities that would otherwise be left unregulated such as private security contractor training to foreign police with firearms. Similarly, 3D printing should be considered technology under the EAR;

Remove or limit the registration fee for manufactures but keep the requirement for the registration;

Add a mechanism to the CCL that would retain the reporting requirement on political contributions and marketing fees that were paid as part of arms sales.

For more details on some of these concerns, we are pleased to submit the below report, which provides more details on these main concerns and recommendations. We look forward to speaking with you or any of your colleagues about these important issues. Thank you for the opportunity to submit our comments and recommendations.